A Review of Dependant Support Claims – Hull on Estates #130
Listen to A Review of Dependant Support Claims
This week on Hull on Estates, David Smith and Jonathan Morse review some of the recent podcasts and hone in on some of the evidentiary requirements of a common-law spousal relationship as it relates to dependant support claims under the Succession Law Reform Act. They look at some recent case law and some of the requirements under the Ontario statute.
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A Review of Dependant Support Claims – Hull on Estates Podcast #130
Posted on September 30th, 2008 by Hull & Hull LLP
David Smith: Hello and welcome to Hull on Estates. You’re listening to Episode #130 on Tuesday, September 30th, 2008.
Welcome to Hull on Estates, a series of podcasts for the Canadian legal community dealing with issues and insights surrounding estate planning in Canada. Hosted by the lawyers of Hull & Hull, the podcast will touch on some key considerations when planning estates and wills. Now, here are today’s hosts.
Jonathan Morse: Hi and welcome to another episode on Hull on Estates. I’m Jonathan Morse.
David Smith: And I’m David Smith.
Jonathan Morse: If you want to be heard on Hull on Estates you can participate in our discussion by leaving a comment. Give us a call at 206-350-6636. The number is in the show notes along with our e-mail address, email@example.com, or you can visit our blog at estatelaw.hullandhull.com.
David Smith: Good morning, Jonathan.
Jonathan Morse: Good morning, David. As I am a relatively new associate at Hull and Hull, I thought I would review several of the recent podcasts to see if I could identify a topic that has not been covered in depth for some time.
David Smith: Well that was quite an undertaking, Jonathan. How did you make out?
Jonathan Morse: Well, I enjoyed myself, to start.
David Smith: There’s certainly a lot of material, isn’t there?
Jonathan Morse: There sure is. I focused on podcasts so far in 2008, and with the blogs I went back a bit further. I honed in on the topic of dependant support claims, and particularly, the evidence required to make a successful claim by dependants. And to hone in even more, I realized that Section 57 of the SLRA, that’s the Succession Law Reform Act defines dependant. One of the categories of dependant is spouse, and I thought it would be helpful, certainly for me anyway, and I thought for listeners, to delve into the evidentiary requirements for spouse, particularly some of the elements of common-law spouse required under the SLRA.
David Smith: You know that’s a great topic, Jonathan, and what I’d say about that topic, specifically, is that nine times out of ten, when you go in front of a judge on a support claim when you’re contemplating a claim, either defending the claim or advancing the claim, I find that the biggest growth area right now is where people are trying to push the envelope as to who is a spouse, and whether there’s been cohabitation for a sufficient period of time. So a good topic and a lot of interesting stuff on that.
Jonathan Morse: Thank you. Before we delve too far into that distinction, I guess I’d like to remind listeners of some recent podcasts on this topic, to provide some context for today’s discussion of dependant support claims, and particularly the evidence required to prove a common-law relationship.
David Smith: Okay, thanks, Jonathan. You know the topic of today is fitting, especially when you see by looking at yesterday’s blog by Bianca La Neve. It’s a situation where a widow there applied for support from the deceased’s estate. And in that case, McDougall and McDougall Estate, a 2008 Ontario Superior Court decision, that was a second marriage and not a common-law situation. But you know, it does highlight the point that support claims are more and more common as I said at the outset. And here in this case, the widow’s claim was denied because it was not driven by need but rather her wish to live the lifestyle she had enjoyed with the deceased prior to a period long before he became ill. And an important point to remember is that the Court looks at support and dependency immediately before death. While there is some case law that suggests, that can be a bit fuzzy on that point, that was an important point to highlight for sure.
Jonathan Morse: I guess following that, a classic example of a common-law situation is when the children of the first marriage hope to deny that their parent had a common-law relationship with the person claiming that he or she was a common-law spouse. Looking further in my review of our recent material, more than two years ago, Suzana Popovic-Montag wrote in her blog, several entries in a series that asked the question, is there support after death? In Part 3 of that, she answered the question of who is a dependant, and that was on June 28, 2006. More recently, on May 20, 2008, Rick Bickhram and Sean Graham discussed evidence issues in estates, when a main party is deceased. In particular, they focused on Section 13 of the Evidence Act and the requirement for corroborative evidence.
David Smith: And let’s just touch on that a little bit more and just explain that requirement. The key witness in any of these claims, Jonathan, is deceased, right? I mean we’ve got a situation where the person who could best tell whether the claimant was, in fact, being supported by the deceased, obviously is deceased. Section 13 speaks to that, it says you’ve got to have corroboration, you’ve got to have material evidence that touches on the issue. The kind of corroboration you want may be in the manner of, if there’s a challenge to whether the two were living together, you’re going to want perhaps bills that were mailed to the address showing both names of both people who were living there together, you’re going to want some witnesses who can attest to the nature of the relationship, that sort of thing, so a very important point. And as I understand it Jonathan, you also found another podcast that touched on this issue.
Jonathan Morse: That’s right, thank you David. I refer listeners to July 1, 2008, just at the beginning of the summer. The podcast by Natalia Angelini and Craig Vander Zee, and they discussed dependant relief and again, the Succession Law Reform Act. In particular, they focused on recent case law, including the line of cases culminating in Cummings and Cummings, decided by the Supreme Court. They left off their discussion by citing two other cases, Reid and Reid, that’s R E I D and Reid, a 2005 Ontario Superior Court of Justice case and Parelli and Foley Estate, a 2006 decision by the Ontario Superior Court of Justice.
David Smith: Right, and just one clarification there or comment, Jonathan, is that, of course, Cummings was a Court of Appeal decision. But I understand that Reid and Parelli, it’s expanded upon some of that and why don’t you tell me a little bit about those.
Jonathan Morse: Sure. In Reid and Reid, it was useful because of Justice Snowie’s analysis of the particular evidence. It’s not necessarily on point with this discussion regarding common-law spouses, but I’ll be brief. Reid and Reid involved the daughter and two grandchildren of the testator, and the three claimants were claiming that they were dependant on the testator. The estate was about $200,000. The son of the testator, so the brother of one of the claimants, did not agree that his sister and niece and nephew were dependants. The Court found they were dependants and that a testator’s support need not be direct financial support.
David Smith: I think that’s an important point, and you know, that’s an important clarification of the blog that we referenced that Bianca did, where, in that case, the Court was critical of the fact that there was no need. Certainly coming out of Cummings we have a regime which clearly says that you do not have to be in need, in financial need and in dependency in a financial sense to be eligible for support. Cummings has expanded the need and the concept of support beyond simply financial need.
Jonathan Morse: Thanks, David. The next case, Parelli and Foley Estate, that was decided in 2006 and it’s certainly more on point with today’s discussion. And in this case, James Foley separated from his wife and subsequently moved to Niagara Falls, and that was in 1988, to a home that he purchased. His girlfriend at the time, a woman named Paula Parelli, gave up her apartment in Toronto that same year and moved to live with Foley. Foley relied on his income from investments while Parelli, she continued to work. Their incomes were comparable, according to the findings by the Court, and in the range of about $25,000. They each contributed to the upkeep, maintenance and operation of the household in Niagara Falls. Foley cooked, did the yard work, washed the kitchen floor, while Parelli cleaned up after dinner, did the laundry and cleaned the house generally. So in 1998, Foley developed Alzheimer’s and in 2000 Parelli quit her job to look after Foley. Then Foley, unfortunately died in 2003.
So in this instance, the estate, including the value of the home, was about $510,000. There were bequests to family members and allowance for Parelli to stay in the home five months after Foley’s death. In this case, Parelli claimed a constructive trust, which the Court allowed, but only for the period during which she had to give up her job to care for Foley, so that was from the period of 2000 to 2003. The Court did not find there was a nexus to the property though, so the dependant’s support claim for the common-law spouse succeeded by increasing the amount of money left to her on top of the money left to her in the Will.
David Smith: You know, that’s a good illustration, Jonathan, of the interplay between a constructive trust claim and a support claim. And it helps also advise counsel as to creative lateral thinking, because there the Court considered the fact that Section 62 provides that housekeeping and domestic services provided by the spouse can be factored into any calculation of a support claim. So an interesting way, and it shows the power of Part 5 of the Succession Law Reform Act, and the degree to which it allows the support claimant to realize an entitlement that they couldn’t realize from a constructive trust claim. Really good point.
Jonathan Morse: Just to hone in on a definition for a moment, David, the SLRA defines spouse, does it not?
David Smith: That’s right. A spouse is either of two persons who are not married to each other, and who have either cohabited continuously for a period of not less than three years, or in a relationship of some permanence, if they are natural or adoptive parents of a child. So it’s a looser definition of spouse than under the FLA, for example.
Jonathan Morse: And I guess I’m envisioning that in sort of the world of different relationships that arise, that trying to determine whether a relationship is actually common-law or not, can be quite tricky sometimes. And I think the definition leaves room for debate because there seem to be so many unique facts, or different fact scenarios. I guess I point to a case, and it was an earlier case in 1999, in Saskatchewan, which provides insight into the evidentiary issues that arise in determining whether or not a common-law spousal relationship exists. And I think the same factors would apply in Ontario, and maybe you can speak to that, David.
David Smith: Yeah, one thing I would say is generally across Canada, the support regimes are very similar, there’s very little difference among any of them. And, you know, a lot of the cases from one province can be used and applied in another, subject to any minor discrepancies in wording. But you know, Jonathan, looking at the time, I see that we’re actually getting close to our limit here in terms of having to wrap this up, and I know that there’s an awful lot we can talk about here. But maybe just in summarizing, can you just give me a sense of what you gleaned in a sort of summary way from your review of the blogs and podcasts?
Jonathan Morse: From the review of the blogs, well we certainly have, we provided a lot of material and I think, certainly for a new lawyer in this area, it can be somewhat overwhelming because there is a large amount of information. But it’s helpful information as well and provides good direction, a good resource to certainly dig into cases and I think texts, in some respects, to provide good guidance with respect to these different issues including that of common-law relationships and what constitutes the common-law relationship.
David Smith: And tell me, Jonathan, just as a lawyer newly specializing in this are of law, were you surprised by the power and breadth of the Succession Law Reform Act as it relates to the dependency claims?
Jonathan Morse: I think I am, yes, because it’s a powerful tool, and certainly clients are recognizing its power and certainly in this time when there’s a lot of wealth transfer happening, individuals are certainly looking to, when an estate arises, they’re looking to how they might resolve situations that have arisen within their family context and coming to us to look at their options under the Succession Law Reform Act.
David Smith: Right, and you know on a final point, I think it highlights the obligation that there should be upon a drafting solicitor who’s making a Will, to ensure that the testator is aware that dependants or people who might qualify as dependants could make claims against the estate and effectively undermine what the testator might think is his last Will. So it’s always a good point for a drafting solicitor to consider. Well, look, Jonathan, lots of fun. I really enjoyed podcasting with you, and I think that brings us to the end of this week’s discussion. Thanks for listening, and thanks for joining us today.
Jonathan Morse: It was a pleasure, David. I look forward to podcasting with you again soon.
David Smith: And that’s right, and you know, Jonathan, we look forward to hearing from our listeners. You can send us an e-mail at firstname.lastname@example.org, as we said at the outset, or just pick up the phone and leave us a message on our comment line at 206-350-6636. And be sure to visit our blog at estatelaw.hullandhull.com where you’ll find even more information and discussion on today’s practice of estate law. We hope you enjoyed the show. I’m Dave Smith.
Jonathan Morse: And I’m Jonathan Morse. Until next week, so long.
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